With Modified Seeds, the USDA Breaks the Rules Yet Again

If you want to understand the Obama administration's schizophrenic attitude toward agricultural issues, consider Tom Stearns. He is the founder and president of High Mowing Seeds, a small Vermont company that sells 100 percent organic fruit and vegetable seeds, primarily to commercial growers. The seeds sown in the First Lady's chemical-free White House garden are ordered from High Mowing each spring, and Stearns has been to Washington, D.C., to consult with Sam Kass, the chef who oversees the nation's most high-profile organic plot.

At the same time, Stearns is suing the United States Department of Agriculture (USDA). High Mowing, along with the Center for Food Safety, the Sierra Club, and the Organic Seed Alliance, took the agriculture department into court in 2008, charging that it had disobeyed its own rules—and the law—when it granted farmers permission to plant sugar beets that were genetically modified to survive applications of Monsanto's Roundup herbicide without first compiling the legally required Environment Impact Statement.

Of all the plaintiffs in the case, Stearns has the most to lose. By the USDA's own definition, crops grown from genetically modified (GM) seeds cannot be labeled "organic." Sugar beets are notoriously promiscuous, breeding not only with themselves but also with their close cousins, table beets and Swiss chard, both of which Stearns sells. If his seeds became contaminated with GM genes, they would have to be destroyed.

But all of us have a stake in the game. Widespread contamination could mean that consumers would no longer have the option of buying non-GM beets and chard. Half of the sugar we consume comes from beets, and does not have to be labeled as being made from GM sources, meaning that Americans are being force-fed GM products.

Because of climactic conditions, the vast majority of sugar beet, table beet, and Swiss chard seed in this country is grown in a small, confined area of Oregon's Willamette Valley. And since beet pollen can be carried for distances of over a mile by the wind, Stearns has good reason to worry about the threat of contamination.

A federal court judge agreed with Stearns and his fellow plaintiffs. In August, Judge Jeffrey White decreed that GM sugar beets could not be planted on a commercial scale until the USDA conducted the required environmental work. If this were a normal case, that would have been the end of the matter.

But it wasn't. The USDA had powerful allies, including agrichemical and seed giants like Monsanto, Bayer CropScience, and Syngenta, who signed on to the case as intervenors, the legal term for parties not directly involved in a case but who have an interest in its outcome. Instead of obeying the judge's orders, the corporations met with the USDA behind closed doors—"the ink wasn't even dry on the judge's order," according to George Kimbrell, senior staff attorney for the Center for Food Safety—and came up with an end run around the judge's decision. The USDA gave the corporations special permission designed to allow limited cultivation of experimental crops to plant the GM beets that would become 2011's seed crop.

Kimbrell went back to court asking that the judge order growers not to plant the "experimental" beets. "Our argument was that the only reason to be growing them was so that they could flower and produce seed," Kimbrell said. "The interveners came back to the judge and essentially said, 'Too late, we've already rushed ahead and put them into the ground.' Basically they were saying that they had already planted the beets, so the judge couldn't order them not to plant them."

The plaintiffs tried again, asking that the judge order the young GM beets destroyed. Ironically, the legal system rewarded the USDA and its corporate pals for circumventing the judge's original order. Once the beets were growing, the plaintiffs had to meet tougher standards. "It's much easier to get a pre-emptive injunction than a mandatory injunction, which we now faced," Kimbrell said. "It's like if you're challenging a timber sale. You want to go in before they have logged the trees and say, 'Don't allow them to log the trees.' Once they've logged the trees, you're up the creek."

Despite the more rigorous standards, the judge came down firmly on the side of the plaintiffs, saying in his order that the legal issue "does not even appear to be a close question." In a December 1 decision, he said that the baby GM beets had to be destroyed. It was the first time a federal court had issued an order to destroy an entire crop. "It was extraordinary," Kimbrell said. "The law and the facts were very clearly in our favor."

No matter. The USDA and its corporate cronies promptly filed an emergency appeal, which will probably be decided sometime in late February or March.

This appeal is just the latest move in a game of legal brinksmanship that the chemical and seed companies, along with their allies at the major sugar producers, have been playing with the tacit support of the USDA.

When the case was in its preliminary stages in 2007—before the first commercial GM sugar beet was planted—the tightly-knit sugar industry had three options. It could have continued growing conventional sugar beets, as it had for the previous century or so. Or it could have acted cautiously in the face of litigation, moving ahead with GM beets in the event that it won the case, but maintaining a supply of conventional seed as a precaution. Instead it decided to completely abandon conventional beets.

Now, at the court of appeals, the corporations and USDA are hoping that the judges will not call their bluff a second time.

Paul Achitoff, another attorney for the plaintiffs, said in a statement, "The USDA's persistent refusal to comply with environmental laws in the face of one court decision after another is remarkable. This is another instance of USDA serving Monsanto's interests at the expense of the public interest without regard to the rule of law."

Back at the head office of High Mowing Organic Seeds, a busy place this time of year as employees rush to fill a steady flow of orders for the 2011 growing season, Stearns has a somewhat more straightforward assessment of the case. "The USDA has rules and the USDA did not follow them," he said. As for the corporations: "They made their own stupid mistake—or maybe not."

Barry Estabrook is a former contributing editor at Gourmet magazine. His work on a dairy farm and fishing boat taught him that writing about food was easier than producing it. He blogs at politicsoftheplate.com.

Barry Estabrook is a former contributing editor at Gourmet magazine. His work on a dairy farm and fishing boat taught him that writing about food was easier than producing it. He blogs at politicsoftheplate.com.